TABLE OF CONTENTS

LIST OF CASES ...................................................................................................................... 2

LIST OF ABBREVIATIONS ................................................................................................. 2

INTRODUCTION.................................................................................................................... 3

RESEARCH METHODOLOGY ........................................................................................... 4

SOURCES OF INTERNATIONAL LAW ............................................................................ 6

THEORIES OF JURISTS ....................................................................................................... 7

HISTORICAL SCHOOL OF JURISPRUDENCE ............................................................ 12

CONCLUSION ...................................................................................................................... 13

BIBLIOGRAPHY .................................................................................................................. 14

1
LIST OF CASES

S.no case

1 Belgium v Spain 1970

2 Columbia v Peru 1950

3 Democratic Republic of the Congo v Belgium [2002] ICJ 1

4 Greece v United Kingdom [1952] ICJ 1

5 Oil Platforms case (Islamic Republic of Iran v United States of America) [2003] ICJ 4

6 United Kingdom v Iran [1952] ICJ 2

7 United States Diplomatic and Consular Staff in Tehran [1980] ICJ 1

LIST OF ABBREVIATIONS

v. Versus

Juris. Jurisprudence

Intl. International

ICJ International court of justice

UN United Nations

Art. Article

2
INTRODUCTION
International law as law is one of the most disputable issue as there have been many critical
analysis and many debates for the same as whether to accept international law as law or not.
There have been many jurists and philosophers who have discussed on the same. As the world
is growing the developments and growth of all countries are going so are the relationships of
different countries are getting complex. People aren’t getting as to follow which law. There are
countries where international law is seen as municipal law and there are countries where unless
the legislature of the country doesn’t pass the subsequent law passed by the international law
in their municipal law the international law does not hold any authoritative power in the
country.

The aspect of international law that it could not have binding sanctions on whosoever has done
wrong makes it weak to be called as law as rightly stated by Austin. People or the countries
which have ratified the treaties or conventions also do not follow the rules and noting could be
done about it. There is no binding force as to make countries work in a particular way as if
there are any laws in international aspect and not followed in the country nobody can enforce
it on them. Also the countries can withdraw from treaties as according to their national interest
and its classic example is the withdrawal of USA from Paris Treaty on climate change1 as
Donald Trump believes that global warming is a hoax.2

The act of Gaza strip is also called the vanishing point of law. The united states; one of the
permanent member of UN is the one who is always defeating the purpose of making of intl law
as it is the one who is always breaking the treaties and rules which it should have had followed.
The Monroe doctrine3 followed by US is again a defeat to the purpose of international law.4

1
time.com › World › climate change
2
https://www.snopes.com/fact-check/donald-trump-global-warming-hoax/
3
A statement of foreign policy issued by President James Monroe in 1823, declaring that the United States
would not tolerate intervention by European nations in the affairs of nations in the Americas
4
https://www.history.com/topics/monroe-doctrine

3
RESEARCH METHODOLOGY
AIM AND OBJECTIVE

The main aim of doing this project is to understand more about international law as law as
whether international law is law or just contains the persuasive powers. Which countries follow
the international law as municipal law and others as not treating the same until the law is
implemented by the country as municipal law. Also the objective of this research is to read
different philosophers and jurists and what is their say on whether international law can be
considered as law and If yes what are the reasons and if not what are their critical analysis and
reasoning behind the same. This also helps the researcher as how the international law has
evolved over time and how one can use these theories and ideas in their professional works as
a lawyer or as a judge or whatever field these theories can be used and in what manner.

RESEARCH DESIGN

The researcher have tried to read as many resources the researcher could in the given time
which was one of its limitations and the researcher has tried to read the different theories given
by different philosophers and jurists regarding whether international law can be treated as law
or not and what are their reasoning and what criticisms their theories have got. So the researcher
has basically done analytical research and comparative study of different theories. The
researcher has used deductive reasoning as by reading the materials available in the given time
span whatever conclusion the researcher could come upon the researcher has tried to note down
the same.

HYPOTHESIS

The researcher had initially thought that international law is law because there are courts which
are of international level and many countries go there and file cases against each other and the
judges try to seek out their disputes.

4
RESEARCH QUESTION

If international law is law who made these laws?

If international law is law who give punishments?

If international law is law does the culprit go in jail or what punishments are given to the guilty?

How is international law related to jurisprudence?

Whether international law is vanishing point of jurisprudence?

LITERATURE REVIEW

The researcher have referred two books on international law and on jurisprudence in which the
researcher 1st tried to understand what international law basically is and whether it is even
considered law or not and then how is it related to jurisprudence and finally the theories of
different philosophers like Austin Kelsen Holland and many more , what their theories were,
how is it helpful to the researcher and how each of them in one way or the other tried to prove
their theories and criticized each other’s theories at various levels.

Further the researcher searched from different online websites like legalindia, scribd,
scholarship law and many more where the researcher learnt that international law is also called
the vanishing point of law and whether it is true or not and by reading these articles the
researcher has got to know that there are different theories as to whether intl law be called as
law or not and different viewpoints have been considered by the researcher while deciding
whether to say intl law as law.

SCOPE AND LIMITATION

This project mainly deals with whether it is correct to say intl law as law and if not is it actually
the vanishing point of jurisprudence as rightly said by T.E.Holland. This project critically
analyze intl law as law and in the end goes on to believing that it actually is vanishing point of
jurisprudence. This research project has its own limitations as this only deals with the aspect
of calling it vanishing point of jurisprudence and could not deal with the other aspects of
international law due to paucity of time.

5
SOURCES OF INTERNATIONAL LAW
Article 38 (1)5 of the ICJ’s statute identifies three sources of international law: treaties, custom,
and general principles. Because the system of international law is horizontal and decentralized,
the creation of international laws is inevitably more complicated than the creation of laws in
domestic systems.

The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:

a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

 Greece v United Kingdom6, ICJ had no jurisdiction to hear a dispute between the UK
government and a private Greek businessman under the terms of a treaty.
 United Kingdom v Iran7, the ICJ did not have jurisdiction for a dispute over the Anglo-
Iranian Oil Co. being nationalized.
 Oil Platforms case (Islamic Republic of Iran v United States of America)8, rejected dispute
over damage to ships which hit a mine.

b) International custom, as evidence of a general practice accepted as law;

 Colombia v Peru9, recognizing custom as a source of international law, but a practice of

giving asylum was not part of it.
 Belgium v Spain10, only the state where a corporation is incorporated (not where its major
shareholders reside) has standing to bring an action for damages for economic loss

c) The general principles of law recognized by civilized nations;

5
Art 38(2) - This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
6
[1952] ICJ 1.
7
[1952] ICJ 2.
8
[2003] ICJ 4.
9
[1950] ICJ 6.
10
[1970] ICJ 1.

6
d) Subject to the provisions of Article 5911, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.

THEORIES OF JURISTS
Austin’s theory on international law

Austin said that law is the aggregate of the rules set by men as political superior or sovereign
to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and
duty is backed by a sanction. He further said that there exists three elements in law:

a. Command

b. Duty

c. Sanction

In international law there are no sanctions to be backed and hence according to him intl law is
not law but mere positive subordinate to the law.

Kelsen on international law12

MONISM THEORY:-It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge
of law which are applicable to human community in some or the other way. All Law are made
for individuals. The difference is that municipal law is binding on individual while
International Law is binding on states. Conclusively it can be said that the root of all laws is
individual.

11
The decision of the Court has no binding force except between the parties and in respect of that particular
case.
12
Dais Jurisprudence, 5th edition page no. 359-374 pure theory of law.

7
DUALISM THEORY: - In view of the dualistic theory writers, International Law and state
Law are two separate laws and contained legal systems. The Monist view of law is part of
philosophy according to which totality is a single structure. But within the framework of the
unitary universe is diversity of phenomenon. International Law cannot become part of state
municipal Law till the principles of International Law are applied under State Municipal Law.

Kelsen proposed that inlt law has the property of dualism and monistic approach and hence intl
law should be considered law and for the part of sanction wars and reprisal are the solutions.

In the reality of international law the development of customary international law does not
constitute a slow and incremental process from conduct first being optional, then habitual, and
eventually obligatory. The identification of a norm of customary international law is a highly
subjective and often result oriented process.13 Customary international law is not the
cumbersome law-making mechanism it is deemed to be. A further development which Hart
could hardly have foreseen is the emerging lawmaking activity of international organizations.
Insofar as international organizations are capable of adopting legally binding decisions they
can be understood as first occurrences of a centralized international legislature.14 In the years
after the founding of the United Nations the discussion about legislative functions of the
organization revolved around the question whether the General Assembly can be understood
as a global lawmaker. But although it is generally recognized that the General Assembly
contributes to the development of international law in manifold ways, its resolutions are not
formally binding. The scholarly focus on the General Assembly has blocked the view of
international lawyers on legislative processes which have been taking place within the
specialized agencies of the United Nations.15More importantly, the UN Security Council has
developed ways of exercising legislative functions. Legislative elements can be found in the
creation of the ad hoc tribunals for the former Yugoslavia and for Rwanda.101 In the aftermath
of September 11 the Security Council adopted Resolution 1373 (2001) which characterizes
terrorism as a threat to international peace and security and obliges the member states to adopt
far-reaching measures in order to prevent future terrorist acts.102 Similarly, Security Council
Resolution 1540 (2004) determines Weapons of Mass Destruction to be a threat to international
peace and security and commits member states to take action against their proliferation.103

13
Bernhardt, ‘Customary International Law’, in R. Bernhardt (ed.), Encyclopedia of Public International Law
(1992), at 898, 901.
14
Bryde, ‘International Democratic Constitutionalism’, in R. St. J. MacDonald and D.M. Johnston (eds), Towards
World Constitutionalism (2005).
15
E. Yemin, Legislative Powers in the United Nations and Specialized Agencies (1969).

8
With almost all states of the world being members of the United Nations and resolutions of the
Security Council being legally binding under Article 25 of the UN Charter, this practice of the
Security Council constitutes legislation in the sense of Hart. Another development which calls
into question Hart’s assessment of the international legal order lacking legislative structures is
the incremental rise of importance of peremptory norms of international law (jus cogens). At
the core of this concept – which was for the first time formally recognized as part of
international law in Article 53 of the 1969 Vienna Convention on the Law of Treaties – lies the
insight that some rules of international law incorporate values and interests so fundamental to
the international community that they have to be kept from the disposal of individual states.
Scope and content of the concept of jus cogens are subject to controversial debates.
Nevertheless, Article 53 of the Vienna Convention makes clear that it is not the will of all states
that decides about the peremptory status of a norm, but rather the will of the international
community as a whole. The dissent of individual states is therefore no obstacle in the
development of a peremptory norm. However, the text also makes clear that first there needs
to be a norm of international law, brought into existence by the general law-making processes,
which is then in a second step elevated to the status of a peremptory norm by the international
community as a whole. The instrument of jus cogens therefore constitutes no law-making
mechanism in the strict sense. It is, however, a mechanism of the international community –
albeit of rather limited practical relevance – normatively to incorporate and entrench
fundamental community values in international law.16

Hart claimed that international law could not be regarded as a legal system because of the
differences in form between municipal law and international law, due to the lack of an
international legislature, judiciary, and centralized system of sanctions, and the absence of a
uniform rule of recognition. This claim of Hart has to be challenged. His methodological
approach does not imply the consequence that a legal system has closely to resemble a
municipal legal order in form and structure. And even if Hart’s assumption is accepted, he
presents only an incomplete account of the municipal legal order. If Hart’s analysis is extended
to the sphere of public law, and in particular constitutional law, the divide between municipal
law and international law does not seem as antagonistic as Hart’s different characterization of
municipal law as a legal system and international law as a mere set of primary rules suggests.

16
http://www.ejil.org/pdfs/21/4/2121.pdf.

9
Applying Hart’s concept to international law with these shortcomings of Hart’s theory in mind,
secondary rules of recognition, change, and adjudication can be identified in international law.
However, international law is, to a larger extent than municipal law, characterized by
unhierarchical structures and a fragmentation of legal regimes. This plurality of international
law should be viewed not only as a defect but as an endemic feature of international law as a
legal system. A jurisprudence which chooses the municipal legal system as the sole baseline
and point of reference for an evaluation of international law will necessarily misconceive these
characteristics and regard them as pathologies. International law has deficits which challenge
its efficiency and significance as a social rule system with the function of governing the conduct
of states and state officials and of containing the use of force and power in international
relations. These deficits are openly visible and, in the case of blatant violations of fundamental
community values and displays of power by individual states, frustrate international lawyers
and external beholders of the system alike. However, structurally comparable deficits exist
within municipal legal orders, to a varying degree and with varying intensity. The differences
between the two legal orders justify a conceptual distinction. But they do not challenge the
notion that the international order is founded on an international legal system, just as the
national polity is governed by a municipal legal system.17

International law as vanishing point of jurisprudence

T.E. Holland has remarked that International Law is the vanishing point of jurisprudence in his
view, rules of international law are followed by courtesy and hence they should not be kept in
the category of law. The international Law is not enacted by a sovereign King. It has also no
sanctions for its enforcement which is the essential element of municipal law. Holland further
say that International Law ass the vanishing point of Jurisprudence because in his view there
is no judge or arbiter to decide International disputes and that the rules of the Intl Law are
followed by States by courtesy. He was a professor of international law and he eventually made
his presence noticeable.18

17
http://www.ejil.org/pdfs/21/4/2121.pdf.
18
https://www.scribd.com/document/343591942/international-law-as-the-vanishing-point-of-jurisprudence-
docx.

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Gaza strip- vanishing point of international law:-

When United States attacked Iraq on the guise of neutralizing Weapons of Mass Destruction
(WMD), invaded Afghanistan in search of Bin Laden, attacked civilians in the Swat valley of
Pakistan with their drones , when Sri Lankan government commits genocide against its own
Tamil population, whenever Israel attacks the Palestinians, whether it be Operation Cast Lead,
Operation Pillar of Defense or now, the Operation Protective Edge, the common man asks
certain common questions, Where is International Law? What is United Nations doing? Where
are the Human Rights Bodies?19

Coming back to the Holland’s view that International Law cannot be called Law, as it does not
have a sovereign authority to enforce or it lacks sanctions, it is at least, not applicable in the
case of maintaining international peace and security as the United Nations Charter has given
the powers to the Security Council to take actions under Chapter 7. But one of the striking
features of International Law is its consensual nature. Unlike municipal law, it depends on the
consent of those states that are governed by it. But the role of consent, and the extent to which
it is applicable, remains unclear. The hierarchical structure of the Security Council and the
alliance of US with the Zionist aspirations of Israel together make the International Law
vanishing, when it comes to Palestine.20

According to Dias, “International Law is obeyed and complied with by the states because it
is in the interests of states themselves.”

For this object they give the following arguments:-

1. The judgments of International court of Justice are binding on States.

2. If any state does not honor the order/judgment of International court of justice, the Security
Council may give its recommendation against that state for action.

3. The judicial powers of International Court of justice have been accepted by the States.

19
http://thecompanion.in/gaza-strip-the-vanishing-point-of-international-law/.
20
http://thecompanion.in/gaza-strip-the-vanishing-point-of-international-law/.

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4. The judgment of International court of Justice has been followed till date.

5. The system of enforcement i.e. sanctions and fear, has been developed

International law changes as according to countries perspective changes

Since international law exists in a legal environment without an overarching "sovereign" (i.e.
an external power able and willing to compel compliance with international norms),
"enforcement" of international law is very different from in the domestic context. In many
cases, enforcement takes on Co-Asian characteristics, where the norm is self-enforcing. In
other cases, defection from the norm can pose a real risk, particularly if the international
environment is changing. When this happens, and if enough states (or enough powerful states)
continually ignore a particular aspect of international law, the norm may actually change
according to concepts of customary international law.

For example, prior to World War I, unrestricted submarine warfare was considered a violation
of international law and ostensibly the casus belli for the United States' declaration of war
against Germany. By World War II, however, the practice was so widespread that during
the Nuremberg trials, the charges against German Admiral Karl Donitz for ordering
unrestricted submarine warfare were dropped, notwithstanding that the activity constituted a
clear violation of the Second London Naval Treaty of 1936.

HISTORICAL SCHOOL OF JURISPRUDENCE

Laws are not of universal validity or application. Each people develops its own legal habits, as
it has its peculiar language, manners and Constitution. Savigny insists on the parallel between
language and law. The VOLKSGEIST i.e., the will of the people or consciousness of the people
which manifests in customs, tradition or habits of a particular mode of behavior for a particular
occasion signifies itself in the law of the people it is therefore essential to follow up the
evolution of the VOLKSGEIST by the legal historical research. According to Savigny, “law
grows with nation, increases with it and dies at its dissolution and is a characteristics of it”.21

21
http://www.infipark.com/articles/discuss-distinctive-characteristics-historical-school-jurisprudence/

12
CONCLUSION

Violations of the UN Charter by members of the United Nations may be raised by the aggrieved
state in the General Assembly for debate. The General Assembly cannot make binding
resolutions, only 'recommendations', but through its adoption of the "Uniting for Peace"
resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it has the power
to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the
peace or acts of aggression, provided that the Security Council, owing to the negative vote of
a permanent member, fails to act to address the situation. The Assembly also declared, by its
adoption of resolution 377 A, that it could call for other collective measures—such as economic
and diplomatic sanctions—in situations constituting the milder "threat to the Peace".

Nation states observe the principle of 'Par in parem non habet imperium'22. John Austin
therefore asserted that 'so-called' international law, lacking a sovereign power and so
unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and
sentiments...more ethical than legal in nature.'

Article 2 (1)23 of the UN Charter confirms this Sovereignty of Nations; no state is in subjection
to any other state.

Also, since the bulk of international law is treaty law, binding only on signatories, then, 'If
legislation is the making of laws by a person or assembly binding on the whole community,
there is no such thing as international law. For treaties bind only those who sign them.' Since
states are few in number, diverse and atypical in character, unindictable, lacking a centralized
sovereign power, and their agreements unpoliced and decentralized, then, says Wight,
'international society is not a society at all. The condition of international relations is best
described as international anarchy; 'While in domestic politics the struggle for power is
governed and circumscribed by law, in international politics, law is governed and
circumscribed by the struggle for power. (This is why) international politics is called power
politics... War is the only means by which states can in the last resort defend vital interests...the
causes of war are inherent in power politics.' And therefore, there are no democratic power as
well so who is to decide what is right and then who have the sovereign power.

22
Between equals there is no sovereign power
23
The Organization is based on the principle of the sovereign equality of all its Members.

13
The hypothesis of researcher has been proved wrong as the researcher has discussed on how
T.E.Holland’s view of calling intl law as vanishing point of jurisprudence is rightly said and
there is doubt as it can’t be called law until there are any binding force on the countries, though
there are economic sanctions on the countries but there very few cases on that as well. The
researcher takes its support from the historical school of jurisprudence as it talks about how
laws are found and not made at a particular place and hence each country would have their own
customs and traditions, own ethical values and hence should and would have their own rules
and regulations. Each and every country has different ideologies and different perspectives
towards things, also the development of the countries are different not only economically but
also ideologically. Some countries face problems regarding communal disputes and some face
border issues, some face opium issues and some face maritime issues and hence different laws
are there for different perspectives and hence international law cannot be called as law.

BIBLIOGRAPHY

Books

Malcom N. Shaw’s International Law, 7th Edition, Cambridge Press University

Wayne Morrison’s Jurisprudence from the Greeks to Post Modernism, Cavendish Publishing
House

R W M Dias, Jurisprudence, 5th edition, LexisNexis

Websites

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8274&context=penn_law_revie

https://www.legalindia.com/vanishing-point-jurisprudence-south-china-sea-arbitration-case/

https://www.scribd.com/document/343591942/international-law-as-the-vanishing-point-of-
jurisprudence-docx

http://www.ejil.org/pdfs/21/4/2121.pdf

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